California, United States of America
The following excerpt is from People v. Chase, E047285 (Cal. App. 2/24/2010), E047285. (Cal. App. 2010):
"`An uncharged crime is included in a greater charged offense if either (a) the greater offense [as defined by statute] cannot be committed without committing the lesser, or (b) the language of the accusatory pleading encompasses all the elements of the lesser offense.' [Citation.] The first, or `legal elements' test, determines whether as a matter of law the legal definition of the greater offense necessarily includes the lesser. [Citation.] Under the second, or `accusatory pleading' test, we review the information to determine whether the accusatory pleading describes the crime in such a way that if committed in the manner described the lesser must necessarily be committed. [Citation.] The evidence actually introduced at trial is irrelevant to the determination of the status of an offense as lesser included. [Citation.]" (People v. Wright (1996) 52 Cal.App.4th 203, 208.)
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